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Prostitution
The
Free Speech Pamphlet Series: Prostitution
A proposed revision of the laws governing
prostitution is a complicated and multi-faceted
issue. Feminists for Free Expression advocates
the decriminalization of prostitution. This
paper sets forth why this position is necessary
and why prostitution is a feminist issue.
Although decriminalization will not solve
all of the problems associated with prostitution,
it is a first step in granting women and
other members of the sex worker population
their basic civil rights.
Definitions
Prostitution: For purposes of this position
paper, “prostitution” means any
consensual sexual activity among or between
adults where money or any other material
compensation is involved. Nonconsensual sex
acts, whether perpetrated by fraud, threat
of force, or force, as well as any sex acts
perpetrated against minors are not prostitution,
and are referred to instead as criminal sexual
acts, collectively.
Prostitute: Anyone who by choice, either
because she likes the work, likes the money
or chooses it as a way to feed herself and
her family, offers consensual sexual activity
for money or any other consideration. Women
are referred to in this discussion, because
prostitutes have most often been identified
as women. In reality, the prostitute population
also includes men and transgendered persons,
and these recommendations hold for those
members of the profession as well. The 1996
San Francisco Task Force on prostitution
concluded that prostitution is not a monolithic
institution. It encompasses people working
in the pornographic media industry, live
theater, massage parlors, bordellos and through
print advertising, as well as the street
workers most commonly envisioned when the
word “prostitute” is mentioned.
Sex worker is a term of self-definition
created by those within the prostitutes’ rights
movement in order to find a term that does
not carry the pejorative connotations or
legal implications of prostitution. The term
includes people whose work involves sexual
entertainment, art, or education that is
not within the ambit of the laws against
prostitution, though it might have been in
the past. The term “sex worker” also
includes all prostitutes.
Decriminalization means the removal of
existing laws and is different from legalization
which is the establishment of laws within
which prostitution can exist (as in the regulated
brothels of Nevada).
Why does FFE favor decriminalization?
Decriminalization allows those who are
prostitutes to go into business for themselves.
Self-determination is a tenet of feminist
politics. Decriminalization removes hypocrisy
within the criminal justice system and fosters
responsibility, empowerment, self-esteem
and self-care.
What are the present
laws?
Laws that prohibit prostitution concentrate
on Soliciting for the purposes of prostitution.
A third party living off the earnings of
a prostitute.
What issues are the present laws supposed
to address?
1) Quality of life. These laws concern
complaints about the adverse impact of street
prostitution on neighborhoods: litter, traffic,
drugs, and crime.
2) Trafficking, slavery, and protection
of our youth.
3) Morality and the undermining of marriage
and “traditional” family values.
Why don’t these laws work?
Quality of Life
Police
crackdowns on street prostitution simply
shift street prostitutes to other
neighborhoods at tremendous taxpayer expense.
Arresting street prostitutes is selective
prosecution. Some segments of the prostitute
population, especially poor women and members
of minority groups, are prosecuted more than
others are. Street solicitation is prohibited
but newspaper ads for prostitutes proliferate
in most major cities.
In most cases only the seller of the service
is arrested, not the buyer.
The quality of life for the woman who chooses
sex work is ignored, as is the quality of
life for the person who chooses to purchase
the service.
Laws against third parties living off the
earnings of a prostitute put prostitutes’ homes
and families in jeopardy because domestic
partners and landlords can be charged.
Arrest records stigmatize sex workers,
making it difficult for them to find employment
in other fields. Fear of arrest prevents
sex workers who are victims of crimes from
reporting those crimes.
Predators see sex workers as easy targets
who “won’t be missed”.
For example, Gary Ridgeway, the Green River
strangler who murdered 48 women, admitted
that he chose mostly prostitutes because
he saw them as easy victims.
Trafficking and Slavery
Unscrupulous
people dupe women, especially those in poorer
countries, with the promise
of a good job in another country, and instead
force them to work in brothels. This is non-consensual
sex trafficking, not prostitution, and those
who perpetrate it are guilty of fraud, kidnapping,
and criminal sexual acts. Prostitution law
does nothing to inhibit such individuals.
In fact, these criminals are helped by the
prostitution laws because they use the threat
of arrest and deportation, as well as the
shame these laws promote, to intimidate their
victims.
Protection of Our Youth
Many children leave
home, to escape child abuse or discrimination
and abuse based on
sexual or gender orientation. Some are runaways,
and some are thrown away. They arrive in
cities and become prostitutes for their survival.
Money wasted on prosecution of adult prostitutes
could be better used to provide care and
services for these needy youths.
Moral Issues
The idea that consensual sex
between adults involving financial or other
remuneration
is symptomatic of moral turpitude is based
not on civil code but on religious ethic.
Among Americans, there diverse opinions on
religion and sexuality. Any law that respects
an establishment of religion violates the
First Amendment (1) to our Constitution.
Why does FFE take this position now?
Sex Workers’ Rights
Movement
There exists today a
unified international sex workers’ rights
movement, consisting of thousands of members,
including those in the United States, who
have organized to demand their basic human
rights. So far, this activism has resulted
in the decriminalization of prostitution
in Australia, New Zealand, and the Netherlands,
with very strong movements in other countries
such as India and Taiwan, where tens of thousands
demonstrate for prostitutes’ rights.
In the United States, lobbying efforts by
sex workers themselves are strongest in San
Francisco, California. In 1996, a report
by the city of San Francisco’s Task
Force on Prostitution recommended decriminalization.
The “Angel Initiative” to decriminalize
prostitution nearly passed when it was put
on the ballot in the city of Berrkely in
2004. We believe this will be the first of
many more initiatives in this country, and
FFE is in support of such initiatives. Among
the many rallying points for this movement,
the strongest is the fight to save the lives
of prostitutes in jeopardy because of laws
that silence them for fear of arrest or lead
those who prey on women to believe that this
is a “disposable” segment
of the population.
Decriminalization models
We can benefit by using other countries that
have decriminalized prostitution as
research models.
Lawrence vs. Texas
The June 2003 ruling by
the Supreme Court in Lawrence vs. Texas upheld
the right of
individuals to engage in consensual sexual
acts in private. Before Lawrence, the courts
held that one must prove that liberties not
mentioned by the Constitution are valid to
be pursued. Thus far, the Court has been
silent on whether consensual sexual acts
between consenting adults in which the participants
also agree on financial remuneration are
protected liberties; we question whether
these activities are so different.
Model Penal Code
In his majority opinion
in Lawrence vs. Texas Justice Kennedy cited
the The American
Law Institute that in 1955 promulgated a
Model Penal Code and made clear that it did
not recommend or provide for “criminal
penalties for consensual sexual relations
conducted in private.” It justified
its decision on three grounds: (1) The prohibitions
undermined respect for the law by penalizing
conduct many people engaged in; (2) the statutes
regulated private conduct not harmful to
others; and (3) the laws were arbitrarily
enforced and thus invited the danger of blackmail.
The New Sex Education Model
Left in the
hands of the entrepreneurs and free from
prosecution, the concept of
the back alley bookstores has evolved into
women-owned sexuality boutiques that are
also centers of learning. The Adult Industry
Medical Clinic (AIM), which offers medical
care and education for members of that industry,
is another fine example of the good that
can come when practitioners are permitted
to govern themselves. From these examples,
we may assume that providers of sexual service
left to govern themselves could also offer
a great benefit to society. There are many
prostitutes and others who consider sex work
a healing art that enhances our quality of
life on many levels, physical, mental, emotional,
and spiritual. It follows that those who
are responsible providers of this service
contribute to society’s health, not
society’s ills, and should be given
support and not condemnation. Prostitution
laws have turned a social asset into a liability.
It can be argued that this has been done
for community hygiene, but we believe anti-prostitution
laws, by keeping sex information underground,
have only helped maintain a dangerous ignorance
that breeds disease. Feminists For Free Expression
supports the efforts of the organized sex
worker movement. We believe that sex workers
allowed to govern themselves have the greatest
potential to promote positive change. Decriminalization
fosters an environment where education, growth,
and good health can flourish.
Whose Body is it anyway?
Some
Comparisons
Reproductive
rights analogy Some
argue the state has an interest in a
woman’s
use of her own body for reproduction (Roe
vs. Wade). Some may also argue that anti-prostitution
laws are for the protection of women. In
actuality, these laws infantilize women
and usurp their power, undermining women’s
rights to self-determination and liberty
under the Fifth (2) and Fourteenth(3) Amendments.
Whether a woman uses her body for reproduction,
recreation or remuneration is her business,
not the state’s.
Athletes choose to subject their bodies
to physical stress that is not only within
the law, but widely praised and financially
compensated.
Cosmetic surgery that
greatly changes the body is not against the
law; moreover, it
is very popular and doctors are handsomely
paid for this service.
Adult Movies: Hardcore adult movies in
which people engage in sex acts for fun and
profit are widely accepted and enjoyed by
a very large segment of the population.
Gender Parity: Women
do not have equal rights under the Constitution.
The Equal
Rights Amendment was never passed. It is,
therefore, more difficult for women to fight
for and retain their rights to equality and
autonomy under the law. Women fight for equal
pay in almost every field. Yet, society arrests
women for performing the only job in which
they can set their own rates and make more
than men who provide the same service. Many
women who do not identify as prostitutes
need and are able to use prostitution for
a limited time in their lives to support
themselves, be it for one night, one year,
one semester, etc. The fact that so many
women are prosecuted for exploiting this
asset reinforces the position of women as
second-class citizens.
It is for the reasons set forth in this
paper that Feminists For Free Expression
advocates the decriminalization of prostitution.
© FFE developed for FFE by Veronica
Vera
1 First Amendment: Congress shall make
no law respecting an establishment of religion,
or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of
the press; or the right of the people peaceably
to assemble, and to petition the government
for a redress of grievances.
2 Fifth Amendment: No person shall be held
to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment
of a grand jury, except in cases arising
in the land or naval forces, or in the militia,
when in actual service in time of war or
public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in
any criminal case to be a witness against
himself, nor be deprived of life, liberty,
or property, without due process of law;
nor shall private property be taken for public
use, without just compensation.
3 Fourteenth Amendment: All persons born
or naturalized in the United States, and
subject to the jurisdiction thereof, are
citizens of the United States and of the
state wherein they reside. No state shall
make or enforce any law which shall abridge
the privileges or immunities of citizens
of the United States; nor shall any state
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.
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